Computer Depot (2000) Limited v Landman HC Tauranga CIV-2010-470-1103 [2011] NZHC 568 (15 June 2011)

Last Updated: 21 June 2011

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

_{CIV-2010-470-1103}

UNDER Companies Act 1993

BETWEEN COMPUTER DEPOT (2000) LIMITED First Plaintiff

AND PDDI HOLDINGS LIMITED Second Plaintiff

AND A LANDMAN First Defendant

AND AVENUE 15 PROPERTIES LIMITED Second Defendant

AND W MARX AND C MARX Third Defendants

Hearing: 15 June 2011

Appearances: Mr Wackrow for Plaintiffs

Mr Elvin for Defendants

Judgment: 15 June 2011

_{ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE}

Solicitors:

Wackrow Williams & Davies, P O Box 461, Auckland –[e-mail]

_{McKenzie Elvin, P O Box 14016, Tauranga – [e-mail]}

COMPUTER DEPOT (2000) LIMITED V LANDMAN & ORS HC TAU CIV-2010-470-1103 15 June 2011

[1] A strike-out application in proceeding CI-2010-470-1103 is listed for hearing in this Court tomorrow. Mr Wackrow who has been retained as solicitor and counsel for the plaintiffs disclosed to counterpart counsel, Mr Elvin, that he and I were friends. Mr Wackrow further disclosed that he has performed legal services for my family trusts and my family and that he is a trustee of one of the trusts. On receipt of this information Mr Elvin indicated that he thought it would be unwise if I were to proceed with hearing the application tomorrow.

[2] I convened this telephone conference for today so that counsel could make any further submissions that they wished to and I have heard from both counsel. Mr Elvin’s position is the same, Mr Wackrow says that he regards the decision as being one for the Court to make and that he would not object if the hearing tomorrow was vacated and alternative hearing arrangements made.

[3] Mr Wackrow referred me to the authority of Saxmere Company Limited v the

Wool Board Disestablishment Company Limited (Saxmere Number 1) 2009 NZSC

72. I read that decision today in anticipation of this hearing. I understand the decision essentially to require that a Judge, who in some respect may be beholden to counsel in such a way that it could influence the outcome of the decision and would be seen to be so by a reasonable and fair minded lay observer, should recuse himself. In the first Saxmere case the argument centred on the acquaintance between counsel and the Judge who were in a racing partnership together. Following that decision it was disclosed that the Judge, Wilson J, was indebted to counsel financially and also was involved in a pending land purchase transaction. Because of the latter circumstance it was concluded that the Judge was dependent upon counsel for his continuing cooperation. In those circumstances the Court concluded that the Judge ought to have recused himself. But the authority does not seem to require that in the case of even close friendships, Judges should decline to preside in cases. While it might be thought that no harm is done by a Judge recusing himself, the Court in Saxmere noted that Judges have an obligation to shoulder their fair proportion of the Court’s work and unnecessary, unjustified orders made by Judges recusing themselves would not be acceptable.

[4] My conclusion, but for one matter, was that this case would not require me to recuse myself. I acknowledge that it is not entirely straightforward. However given the indication that Mr Wackrow has made about the plaintiffs’ position I think on balance this might be a case where I should decline to hear the matter. I think as well that to prevent any recurrence of this problem future steps in the proceeding should be taken by other Judges and therefore it might be as well if the proceeding were to be transferred to another Registry at least for disposition of the interlocutory phases of the case. The proceeding is to be transferred to the Hamilton Registry. Tomorrow’s fixture is vacated. The costs on this hearing are reserved.

[5] The same issues are potentially going to emerge in proceeding CIV-2011-

470-402 and that file should be similarly transferred to the Hamilton Registry and at least initially should be called together with proceeding CIV-2010-470-1103. The Registrar at Hamilton is to make the appropriate arrangements for the first mention

_{of this matter before the presiding Associate Judge.}

J P Doogue

Associate Judge